Controversial Judicial Appointments

Trump is on pace to appoint a record number of federal appellate judges.  These judges enjoy lifetime appointments and are one level below the U.S. Supreme Court.  The vast majority of federal cases are decided by these judges.  Considering that these nominees must be confirmed by the Senate; that Republicans have a 53-47 majority in the Senate; and, that Republicans have dispensed with all the traditional Senate rules and customs that used to apply to judicial confirmations, nominees are usually confirmed speedily because Democrats have no way to stop them.  However, two Trump nominees may not be confirmed and the uncertainty of their confirmation has become news.

The questionable nominees are Steven J. Menashi, a lawyer in the White House Counsel’s office, and Halil Suleyman Ozerden, a federal judge in Mississippi. 

Menashi is only 40 years old.  He graduated from Stanford’s law school in 2008, which means he has very, very little real world experience.  Menashi does not have the support of either of his state’s senators.  Menashi has written several things which are highly controversial and raise legitimate questions about his neutrality and fitness.  He also refused to answer questions forthrightly in his confirmation hearing about his work for Trump.

Judge Ozerden is 52.  He was appointed by George W. Bush in 2007 to the Federal District Court in Mississippi.  Why does he have a problem?  Because Senator Ted Cruz of Texas thinks he isn’t conservative enough.  Cruz bases this on Judge Ozerden’s decision to dismiss a challenge by a Catholic diocese to the Affordable Care Act’s requirement that insurance plans cover contraception.  Both of Judge Ozerden’s Republican senators support him, but he may not be conservative enough to pass muster.

On the same day these two appointments were reported to be in trouble, The Wall Street Journal attacked the American Bar Association for its “trashing” of another judicial nominee, Lawrence Van Dyke.  According to The Wall Street Journal, the American Bar Association is a “liberal lawyers guild” which is unjustly condemning Van Dyke as “arrogant, lazy”, “an ideologue” who “does not have an open mind” and “lacks humility”, simply because he is “a Republican, and worse, an evangelical Christian and gun hobbyist from the Mountain West.”  After all, sniffs Adam J. White, a resident scholar at the conservative American Enterprise Institute, Van Dyke graduated from Harvard, edited the law review, was a clerk to a justice on the D.C. Circuit Court, and works for the Justice Department’s Environmental and Natural Resources Division. 

Will these nominees be confirmed?  Probably.  The math is clear, but isn’t there a better way to find qualified people who aren’t hyperpartisan?

The ideal nominee in the eyes of the politicians is someone who graduated from one of the country’s most prestigious Ivy League law schools, clerked for the Supreme Court or a federal appellate court, worked in a silk stocking/white shoe major law firm in a big city, and is a reliable conservative or liberal vote (depending on the politics of the president who makes the nomination).  It is exceedingly rare for anyone who attended a state supported school and who has had a lengthy career of representing individuals and small businesses or who has been on a trial court bench for many years to be nominated.  This country is full of highly intelligent, vastly experienced lawyers and judges who are relatively free of political ideology.  They earned their success by showing up for work every day, year after year, working hard, and respecting the law and our judicial system.  They don’t answer to the ABA or the Federalist Society.  Theirs is a higher calling.

I strongly believe we would all be better off and the judiciary would be better off if presidents nominated persons who had backgrounds and qualifications that were more egalitarian and who don’t have a political agenda.